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Exhibit 10.48
PROVANT, Inc.
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
March 31, 2000
Xxxx X. Xxxxx, Ph.D.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Dear Xxxx:
This letter agreement (the "Agreement") among you (the "Employee"),
PROVANT, Inc. ("PROVANT") and PROVANT's subsidiary, Behavioral Technology, Inc.
(the "Company"), is intended to set forth the arrangements with respect to the
termination of the Employee's employment with the Company.
1. The Employee hereby resigns effective March 31, 2000 (the
"Termination Date") as an employee and officer of the Company and from any other
position that the Employee may hold with PROVANT or any of its subsidiaries
(PROVANT and its subsidiaries are collectively referred to herein as the
"PROVANT Group"), provided, however, that the Employee shall continue to serve
as a member of the Board of Directors of PROVANT until his successor is duly
elected and qualified. The Employee, the Company and PROVANT (collectively
referred to as the "Parties") agree that the Employment Agreement dated as of
May 4, 1998 between the Employee and the Company (the "Employment Agreement") is
hereby terminated as of the Termination Date, except for the provisions of
Sections 7 through 23, inclusive, of the Employment Agreement which shall remain
in full force and effect. The Employee acknowledges and agrees that he has
received payment in full of all amounts due to the Employee from the PROVANT
Group for accrued wages, benefits (including, without limitation, accrued,
unused vacation leave, earned commissions, and scheduled advances) and any other
payments accrued through the Termination Date or to which the Employee is
otherwise entitled in connection with the Employee's employment with the Company
or the termination of such employment.
2. In consideration for the Employee's execution of and compliance with
this Agreement, the Company agrees to provide the Employee with the "Severance
Benefits" described in the following subparagraphs (a), (b), (c) and (d):
(a) The Company shall pay the Employee (i) from the Termination Date
through April 30, 2001, $10,716.66 per month and (ii) from May 1, 2001 through
October 31, 2001, $14,583.33 per month, in each case payable on the same
schedule as executives of the Company then receive regular salary payments, such
payments to begin on the Company's first
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March 31, 2000
Page 2
regular payroll date following the Effective Date of this Agreement (as defined
in paragraph 14) (the "Severance Payments"). The period beginning on the
Termination Date and ending on October 31, 2001 is referred to herein as the
"Payment Period". The Severance Payments and the Bonus Payment (as defined in
paragraph 1(b)) shall be subject to all applicable withholding taxes and similar
required or authorized deductions.
(b) On or before September 30, 2000, the Company shall pay the Employee
a one-time payment of $70,000 (the "Bonus Payment") if the Company achieves its
revenue and EBIT (earnings before interest and taxes) targets for the fiscal
year ended June 30, 2000 such that the Executive would have been eligible for
the Bonus Payment had he continued to be employed with the Company. In
determining whether or not the Company has achieved its revenue and EBIT targets
for the fiscal year ended June 30, 2000, the expenses of the Company for the
fiscal year ended June 30, 2000 will be adjusted such that the Company incurs no
greater expense or benefit as a result of the restructuring charge to be taken
by PROVANT than the Company would have incurred had the restructuring charge not
occurred.
(c) Within ten (10) days of the Effective Date of this Agreement (as
defined in paragraph 14), the Company shall pay to the Employee a one-time
payment of $788.76.
(d) The Company will offer the Employee the opportunity to continue to
participate in its group medical insurance program (the "Health Plan") pursuant
to the health care continuation provisions of the federal COBRA law. If the
Employee is eligible for COBRA coverage, elects to continue coverage under the
Health Plan pursuant to COBRA and timely makes all required contributions in
full for such coverage and otherwise maintains eligibility for COBRA coverage,
then in consideration of the Employee's execution of and compliance with this
Agreement, the Company agrees to pay the Employee in substantially equal
installments for the Payment Period, or if shorter, the period beginning on the
Effective Date and ending on the date the Employee's right to continue coverage
under the Health Plan pursuant to COBRA expires, an amount equal to the portion
of the premium for health care coverage paid by the Company for similarly
situated active executives of the Company for coverage under the Health Plan.
The Employee hereby authorizes and requests the Company to (i) withhold from the
Severance Payments the Employee's portion of premiums for COBRA coverage under
the Health Plan not paid for by the Company, and (ii) forward to the Health Plan
insurer such withheld amount and the amounts described in the preceding
sentence. The Employee's eligibility to participate in and receive benefits
under the Health Plan shall remain subject to the terms and conditions of the
Health Plan.
The Employee hereby acknowledges and agrees that (i) the foregoing
Severance Benefits are in excess of all other payments, benefits, and things of
value to which the
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March 31, 2000
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Employee would be entitled if the Employee did not execute and comply with this
Agreement; and (ii) the Severance Benefits shall not be deemed to be salary or
other compensation to the Employee for purposes of any plans, programs or
arrangements maintained or contributed to by the Company or the PROVANT Group to
provide benefits to its employees, directors or officers ("Benefit Plans").
3. The Company hereby conveys, assigns and transfers to the Employee
the following:
(a) the personal laptop computer, including the currently installed
software, the monitor, the keyboard, the docking station, the computer cables
and the related service contract, purchased by the Company for use by the
Employee;
(b) all of the Company's copies of Get Hired; and
(c) any royalties received by the Company pursuant to that certain
agreement dated July 21, 1998 between the Company and Jossey-Bass Inc.
Publishers, as a result of sales of the book entitled Robust Competencies to
persons or entities other than the PROVANT Group (which royalties shall be paid
to the Employee within thirty (30) days of the receipt of such royalties by the
Company).
4. The Employee acknowledges that (a) there are no other benefits,
compensation or remuneration of any kind owing to the Employee from the PROVANT
Group, including, without limitation, any accrued vacation or sick pay, other
than the Employee's rights, if any, under COBRA and the Employee's rights, if
any, under the Company's qualified retirement plan, and (b) if the Employee
hereafter serves as an independent contractor of the Company or a director of
PROVANT, then in such capacity the Employee shall not be entitled to participate
in, accrue any benefits under, or receive any payments from any Benefit Plans
(except as otherwise expressly provided under the terms of such plans).
5. The Employee agrees that all source code, object code, memoranda,
notes, records, charts, reports, letters and other documents and software made,
compiled, received, held or used by the Employee while employed by the Company,
concerning any phase of the business of the Company or the PROVANT Group, are
the property of the Company or the PROVANT Group, as the case may be, and,
together with all reproductions or abstracts thereof and together with all
Company or PROVANT Group credit cards and keys (other than his key to the
Company's building that he owns), have been returned to the Company.
6. The Employee hereby acknowledges and agrees that this Agreement is
intended to be a complete and final settlement of any and all causes of action
or claims that the Employee
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March 31, 2000
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has had, now has or may now have, whether known or unknown against the PROVANT
Group or any of the persons or entities specified below. The Employee hereby, on
behalf of the Employee, the Employee's executors, heirs, administrators, assigns
and anyone else claiming by, through or under the Employee, waives, releases,
covenants not to xxx and forever discharges the PROVANT Group, its predecessors,
successors, related corporations, subsidiaries, divisions and affiliated
organizations, and each and all of their present and former officers, directors,
shareholders, representatives, agents, promoters, employees and attorneys
(hereinafter "Releasees"), and each and all of them of, from and with respect to
any and all debts, demands, actions, causes of action, suits, covenants,
contracts, agreements, promises, torts, damages, claims, demands and liabilities
whatsoever of any name and nature, both in law and in equity (hereinafter
"Claims") which the Employee now has, ever had, or may in the future have
against each or any of the Releasees by reason of any matter, cause or thing
whatsoever from the beginning of the world to the Effective Date of this
Agreement (as defined in paragraph 14), including, but not limited to, any
Claims arising out of, based upon or connected with the Employee's engagement
and/or employment by the Company, the compensation, benefits and working
conditions for that employment and/or the termination of that employment, or the
acquisition by PROVANT of Behavioral Technology, Inc., a Tennessee corporation,
pursuant to the Agreement and Plan of Merger dated as of May 4, 1998 among
PROVANT, the Company, Behavioral Technology, Inc., a Tennessee corporation, the
Employee and certain other individuals, or any transactions related thereto and
any Claims that may exist under federal, state or local laws, including, but not
limited to, any Claims based on race, disability, color, national origin,
marital status, age or sex. The foregoing waiver and release includes, without
limitation, a waiver and release of any rights and Claims that Employee may have
under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the
Americans with Disabilities Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment and Retraining
Notification Act, the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. Section 621 et seq. (the "ADEA")(except that this Agreement does not
waive or release any rights or claims under the ADEA that may arise after the
execution of this Agreement or otherwise bar the Employee from challenging this
Agreement's compliance with the provisions of 29 U.S.C. Section 627(f)(1)), the
Fair Labor Standards Act, the state and local laws of Massachusetts and
Tennessee.
7. The Company represents and warrants that as of the date hereof, the
Company knows of no claims or causes of action of whatever kind or nature which
the PROVANT Group has or may have against the Employee which arose on or before
the date hereof, including, but not limited to, any claims for relief, whether
injunctive, declaratory, statutory, monetary or otherwise arising under any
federal, state or local law, ordinance, regulation or
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March 31, 2000
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order arising from or in connection with the Employee's employment by the
Company whether based on contract, tort including negligence, or otherwise.
8. The Employee hereby agrees not to disclose to any person (except the
Employee's spouse, attorney or financial advisor), organization or agency the
terms of this Agreement except as required by law and then only after notice is
given by the Employee or the Employee's attorney to the Company such that, where
feasible, the Company will have a reasonable prior opportunity to oppose such
disclosure; notwithstanding the foregoing, the Company acknowledges that the
Employee has already discussed some of the terms of this Agreement with Xxxx X.
Xxxx and Xxxx Xxxxxx. The Employee also acknowledges and agrees that the
restrictions against disclosure and use of confidential and/or proprietary
information set forth in Section 8 of the Employment Agreement shall survive the
Termination Date and shall remain in full force and effect and shall apply to
any Confidential Information (as defined in the Employment Agreement) obtained
by the Employee during the Payment Period. The Employee further acknowledges and
agrees that the non-competition and non-solicitation restrictions set forth in
Section 7 of the Employment Agreement shall survive the Termination Date and
remain in full force and effect until May 4, 2001. The Employee hereby reaffirms
the Employee's obligations under Sections 7 and 8 of the Employment Agreement.
The Employee further acknowledges and agrees that the non-competition,
non-solicitation and non-disclosure restrictions set forth in the Employee's
Non-Competition and Non-Disclosure Agreement dated May 4, 1998 remain in full
force and effect until May 4, 2003.
9. The Company and the Employee each agree with the other not to discuss
with any person or entity the circumstances surrounding the Employee's
employment with or separation from the Company, except to the extent required by
law; notwithstanding the foregoing, the Company acknowledges that the Employee
has already discussed some of the terms of this Agreement with Xxxx X. Xxxx and
Xxxx Xxxxxx. The Employee agrees not to make any adverse remarks whatsoever
concerning the business, operations, strategies, policies, prospects, affairs
and financial condition of the Company. The Company agrees that it will not make
any adverse remarks whatsoever concerning the Employee and that it will instruct
its officers not to make any adverse remarks whatsoever concerning the Employee.
The Company and the Employee agree that any public disclosure of this Agreement
or of the circumstances of the Employee's departure from the Company shall be
agreed upon by both parties prior to its disclosure, other than disclosure
required by law, including, without limitation, applicable securities laws.
10. It is expressly understood and agreed that by entering into this
Agreement, the Company in no way thereby admits that it unlawfully or wrongfully
discriminated against the Employee due to the Employee's age or status or
otherwise treated the Employee unlawfully.
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March 31, 2000
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11. All payments (including, without limitation, the Severance Benefits)
to be made to the Employee and benefits to be made available to the Employee in
accordance with the terms of this Agreement, and the performance by the Company
of its other obligations hereunder, shall be conditioned on the Employee's
continued compliance with the covenants set forth in this Agreement and the
surviving provisions of the Employment Agreement. In the event that the Employee
is in breach of either this Agreement or the surviving provisions of the
Employment Agreement, any remaining payments owed to the Employee by the Company
hereunder shall be paid into an escrow account with an independent institution
until the parties enter into a settlement concerning the Employee's breach or a
final non-appealable judgment has been obtained; notwithstanding the foregoing,
the Company shall continue to pay to the Health Plan insurer any premiums for
COBRA pursuant to Section 2(d) of this Agreement until the parties enter into a
settlement concerning the Employee's breach or a final non-appealable judgment
has been obtained.
12. The Company and the Employee agree that irreparable damages would
occur in the event that Sections 5, 6, 8 and 9 of this Agreement are not
performed by the party obligated thereunder in accordance with their specific
terms. It is accordingly agreed that the other party will be entitled to an
injunction or injunctions to prevent breaches of the party obligated thereunder
and to enforce specifically the terms and provisions hereof in any court having
jurisdiction, this being in addition to any other remedy to which it is entitled
at law or in equity.
13. If any term or provision of this Agreement or the application thereof
to any person, property or circumstance shall to any extent be invalid or
unenforceable, then at the election of the party primarily benefitted by such
term or provision, the remainder of this Agreement or the application of such
term or provision to persons, property or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
14. The Employee acknowledges that the Employee has been given a full and
fair opportunity to consider this Agreement. The Employee is hereby advised to
consult with an attorney before signing this Agreement and, by the Employee's
signature below, the Employee acknowledges that the Employee has consulted with
an attorney before signing this Agreement. From the date that the Employee
receives this Agreement, the Employee has twenty-one (21) days to consider it.
Should the Employee decide to sign the Agreement, the Employee has seven (7)
days following the signing to revoke the Agreement, and the Agreement will not
become effective and enforceable until that seven (7) day revocation period has
expired (the "Effective Date"). Should the Employee either decide not to sign
this Agreement or should the Employee sign it and elect to revoke it during the
seven (7) day revocation period, then this
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March 31, 2000
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Agreement shall be null and void. No payments or benefits provided for by this
Agreement will be made until after this seven (7) day period has expired without
the Employee revoking this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee without regard to conflicts of law
principles. The obligations of the Company and the Employee hereunder shall
inure to the benefit of and be binding on the respective heirs, personal
representatives, successors and assigns of the Parties. This Agreement embodies
the entire agreement and understanding between the Employee and the Company
concerning the Employee's employment and the termination thereof and
incorporates and supersedes all other agreements with regard to the Employee's
employment and the termination thereof. This Agreement shall not affect the
Employee's surviving obligations under the Employment Agreement, the Agreement
and Plan of Merger dated as of May 4, 1998 among PROVANT, the Company,
Behavioral Technology, Inc., a Tennessee corporation, the Employee and certain
other individuals, the Employee's Investment Representation Letter to PROVANT
dated May 4, 1998 and the Employee's Non-Competition and Non-Disclosure
Agreement dated May 4, 1998, or the Parties obligations under the lease between
the Employee and the Company and the royalty agreement between the Employee and
American Media Incorporated.
16. This Agreement may be amended or modified only upon the written
mutual consent of the parties.
17. The Employee hereby acknowledges and agrees that (a) the Employee
understands the provisions of this Agreement, (b) the Employee's acceptance and
execution of this Agreement is knowing and voluntary, (c) the Employee has been
afforded a full and reasonable opportunity of at least twenty-one (21) days to
consider its terms and to consult with or seek advice from any attorney or any
other persons of the Employee's choosing and (d) the Employee has been advised
by the Company to consult with an attorney prior to executing this Agreement and
has, in fact, consulted with an attorney.
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If the foregoing is in accordance with your understanding, please sign
and return the enclosed copy of this letter, whereupon this letter and such copy
will constitute a binding agreement under seal between you and the Company on
the basis set forth above.
Very truly yours,
PROVANT, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
BEHAVIORAL TECHNOLOGY, INC.
By /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Acknowledged and Agreed to:
/s/ Xxxx X. Xxxxx, Ph.D.
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Xxxx X. Xxxxx, Ph.D.
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